Hot Takes

Several members of Congress have sent a letter to the IRS calling for cryptocurrency tax clarity.

Today's letter, published by House Ways and Means Committee Chairman Kevin Brady, calls on the agency to “expeditiously issue more robust guidance clarifying taxpayers’ obligations when using virtual currencies.” It is a follow-up to a letter published in 2017.

These letters echo Coin Center’s calls for greater clarity and guidance around the tax treatment of cryptocurrencies. Right now, American cryptocurrency users who want to pay their taxes simply don’t know how to do so properly. This gray area is not only frustrating, but can also create serious liabilities for well-meaning citizens.

The 2017 letter goes on to ask for more information about the rationale behind the IRS’s 2017 John Doe summons for Coinbase user data, which we believe is an overly broadfishing expedition.

We were also pleased to see them ask if the agency will consider a de minimis exemption for small transactional use of cryptocurrencies, which we called for in April of last year. Currently, a user needs to calculate capital gains on every stick of gum they buy with cryptocurrency. That doesn’t make sense. The Cryptocurrency Tax Fairness Act, introduced last year, would address this issue.

We are glad to see Congress take action–there are clearly many open questions surrounding taxation of cryptocurrencies. It’s promising to see members of Congress step up to call for a more welcoming environment for these new technologies.

The Comptroller of the Currency is making the case for a Federal Fintech Charter, a welcome alternative to state-by-state licensing for cryptocurrency and other payments companies.

In a recent op-ed, Comptroller Otting rightly celebrates competition between state and federal regulators and describes the existing dual banking system:

“Since 1863, the United States has benefited from a dual banking system in which companies seeking to conduct the business of banking can choose to operate via state licenses and charters or apply for federal charters and operate nationwide.”

A shortcoming of the dual banking system, as we see it, is that while there are both state and federal options for traditional deposit-taking banks, payments companies who don’t take deposits (cryptocurrency exchanges among them) generally only have one option: state regulation through money transmission licensing. Why, we’ve asked on several occasions, isn’t there a federal regulatory alternative for money transmitters as there is for regular banks?

The OCC’s fintech charter could be that alternative. It would allow a financial services company to become federally regulated as long as it performs any one of the three core banking functions described in the National Bank Act: deposit-taking, lending, or check-cashing (or as the kids these days call it, payments).

Moreover, as we’ve written in our comments submitted to the OCC Fintech Charter proceedings, companies that facilitate payments in cryptocurrency should also be eligible for federal charters just like the Paypals or Venmos of the world.

Today, the Comptroller echoed that sentiment, suggesting that there should be a Federal analog to New York’s recent decision to regulate Gemini and Itbit’s issuance of dollar-backed tokens. We’re thrilled that the federal charter effort is alive and kicking and that the Comptroller is excited for his agency to play a role promoting innovation in the cryptocurrency space.

The Federal Reserve of St. Louis has published an excellent paper on payment systems and privacy.

Research Fellow Charles Kahn explains why financial privacy is important irrespective of concerns over illicit transactions, and how privacy is being actively eroded as electronic payment systems replace anonymous cash.

Not all of the privacy provided by cash is bad, and if cash disappears we will need new ways of providing that privacy. Because privacy needs are different in type and degree, we should expect a variety of platforms to emerge for specific purposes, and we should expect continued competition between traditional and start-up providers.

He goes on to offer two reasons why the private sector may be better poised to provide future cashless payment privacy than the government: technical expertise and trustworthiness.

First, it's hard to argue that the central bank will have greater technical skills in protecting privacy (at least in retail transactions; wholesale and infrastructure may be a closer call). The standard regulatory arguments for oversight of payments systems apply, however: There is an easy case for a regulator to be in charge of setting and harmonizing standards for privacy protection.

On the issue of trustworthiness, the answer is more difficult: … Every twist and turn in politics provides an opportunity to justify an examination of one or another aspect of individuals' transactions. And it is not clear in the current political environment that a central bank or a payments authority will be any stronger at pushing back on these intrusions than private institutions are.

Nor will transparency solve the problem. Paper money is transparent: The technology eliminates the ability of the issuer to monitor transactions, and "it is a truth universally acknowledged" that paper money does so. No computer technology can have this degree of confidence. Only an infinitesimal proportion of people on this planet can verify that computer code does what it advertises it does and only what it advertises. To believe that the CIA has imprinted paper currency with a technology enabling it to report hand-to-hand transactions is paranoia. To believe that spy agencies have backdoors to common computer programs is last week's news. Generating trust in the privacy promises of a public payments authority's new electronic money will be an extremely tall order.

He's also understandably wary of the trustworthiness of private sector payments providers given the lucrative incentives behind customer data collection and monetization. In light of that unfortunate reality, he offers an optimistic balance-of-powers prognosis for privacy:

All institutions, public or private, are likely to be untrustworthy—they are just going to be untrustworthy in different ways. Citizens are not really interested in an absolute guarantee of privacy; we simply want it to be sufficiently difficult to violate privacy that it can be done only in a publicly observed and generally agreed way. Using the differences in objectives of the private and public spheres becomes, it seems to me, a way of making this tension work for us: Public regulation with pushback by private providers seems to me the more hopeful formula.

That's a reasonable approach, but it also points to an alternative. Rather than looking for trustworthy institutions or pitting one untrustworthy institution against another, perhaps we can use open source software development and open blockchains to build private payment systems that don't require trustworthy administrators at all! This, it seems to me, is one way to describe the goal of privacy-protecting cryptocurrency projects like Zcash, Monero, and Grin, and it's why we at Coin Center are so keen on promoting a regulatory climate that does not deny these new technologies the room they need to grow into robust cash alternatives.

The SEC rejected a request to allow the BZX Exchange to list and trade shared of the Winkelvoss Bitcoin Trust, a Bitcoin based Exchange-Traded Product (ETP). In order to allow the exchange to list the ETP, the SEC would have had to approve a rule change. The SEC refused to do so, largely because they felt that the BZX Exchange did not have sufficient safeguards in place to prevent market manipulation.

In her dissent from the decision, Commissioner Hester Peirce laid out the flaws in the SEC’s reasoning, and shone a light on the challenge to innovation that this decision poses:

By suggesting that bitcoin, as a novel financial product based on a novel technology that is traded on a non-traditional market, cannot be the basis of an ETP, the Commission signals an aversion to innovation that may convince entrepreneurs that they should take their ingenuity to other sectors of our economy, or to foreign markets, where their talents will be welcomed with more enthusiasm.

To support her point, Peirce lists some of the many benefits that decentralized cryptocurrencies offer:

For example, trading in bitcoin is electronic, which facilitates competition and price transparency. Bitcoin are interchangeable, so that a purchaser is sure to get exactly the same thing no matter where she purchases it. In addition, bitcoin mining is not geographically limited (except to the extent it migrates to places with cheap electricity), so it is not subject to geopolitical threats that plague other commodity markets.

Peirce voices serious concerns about the discord between the SEC’s actions and its mission. She warns that with this decision, the SEC has positioned itself as the “gatekeeper of innovation,” which, in Peirce’s view, is a role that “securities regulators are ill-equipped to fill.” Peirce argues that investors in the cryptocurrency space tend to have far more sophisticated knowledge of the technology and should be left to decide for themselves whether they wish to invest. She concludes by asserting that the SEC has overstepped its boundaries and is acting in interests contrary to the ones it was founded to protect:

I reject the role of gatekeeper of innovation—a role very different from (and, indeed, inconsistent with) our mission of protecting investors, fostering capital formation, and facilitating fair, orderly, and efficient markets Accordingly, I dissent.

Last week, Federal Reserve Chairman Jerome Powell testified before the House Financial Services Committee, and while reports of his remarks on cryptocurrency have focused on his narrow and negative views of the technology, we think the real news is that he stated that the Fed doesn’t have jurisdiction over cryptocurrencies and isn’t seeking to provide oversight.

An exchange between Powell and Rep. Patrick McHenry, who understands cryptocurrency, basically restates Coin Center’s recent explainer on crypto and monetary policy: “Cryptocurrencies hold much promise to expand the range of monetary options available to all classes of people and secure a degree of security and liberty not offered by some of the world’s government-backed currencies. They currently exist in a small and experimental corner of the world’s financial markets, and are therefore unable to restrain central bank’s monetary policy levers.”

At a recent event hosted by Andreessen Horowitz and #Angels, Coin Center Senior Policy Counsel Robin Weisman joined former federal prosecutor and now lead of a16z’s crypto fund Kathryn Haun on stage to talk through recent movements in cryptocurrency policy and the effect they may have on the development of this technology.

Speaking today at a conference, the U.S. Securities and Exchange Commission’s Director of Corporate Finance, William Hinman, revealed in a speech that the SEC does not consider Ether, the Ethereum network’s native cryptocurrency, to be a security:

"Based on my understanding of the present state of Ether, the Ethereum network and its decentralized structure, current offers and sales of Ether are not securities transactions."

We are glad the SEC agrees with our long held analysis of how securities law applies to decentralized cryptocurrency networks like Bitcoin and Ethereum (See, in particular, our analysis of Ethereum here). We are thrilled to see it take strong pro-innovation approach to this nascent technology. With this guidance, the SEC is showing that taking a pro-innovation approach does not have to come at the expense of protecting investors.

Director Hinman’s analysis was based on an appreciation for the nuances of how decentralized technology really works, something we laid out years ago in our framework for securities regulation of cryptocurrencies. He used his speech to explain the Howey Test for determining whether a financial instrument is an investment contract and concluded that his analysis was that Ethereum failed the Howey test and, therefore, could not be considered a security:

When the efforts of the third party are no longer a key factor for determining the enterprise’s success, material information asymmetries recede. ... the ability to identify an issuer or promoter to make the requisite disclosures becomes difficult, and less meaningful.

It is a very good day for US policy toward the technology of innovation.

For more information on Ethereum, please see this explanation written by Ethereum’s founder, Vitalik Buterin, on Coin Center’s website: What is Ethereum?

During his speech at the United Nations last week, Commissioner Behnam spoke at some length about the potential value that this new technology can bring to the United States and other nations. He noted that cryptocurrency has the potential to be an effective runaround the problem of corruption in International Development:

Here is our chance to put money directly into the hands of those who need it, without bribery, rake-offs, graft, and shakedowns. Virtual currencies could transform the economic and social landscape. It could mean a massive, and equitable, shift of wealth. Technology could be transformational, without a military take-over, civil war, or political or religious creed.

Benham also spoke about sectors of the United States economy that have tremendous potential to apply this new technology. Here is what he said about agriculture:

Through blockchain technology, finding solutions to these challenges may become significantly more attainable. Food could arrive on grocery shelves faster, using an intricate system of measures meant to trace location from the farm to the table, with the additional bonus of providing abundantly more information about the product source… we could eliminate food waste and even improve distribution through networks domestically and internationally.

And about healthcare:

Blockchain could allow patients to create smart records that gather and harmonize information, leading to better continuity of care and even new models of care. Blockchain could also address medical fraud and waste. And, as a result, help contain the rising cost of health care.

In 2016, we published a report in which we explain why open, permissionless blockchain technology is essential for powering identity and digital cash use-cases that are inherent to addressing the supply chain and charitable aid issues Benham discussed. Indeed, we are cautiously optimistic about proclamations that imply these technologies are the skeleton key to unlocking greater equality and efficiency in global markets.

Behnam also spoke about the importance of pursuing legal action against fraudsters, and the challenge and importance of correctly categorizing specific tokens. Furthermore, Commissioner Behnam signaled that the CFTC was completely convinced that cryptocurrency is primed to permanently disrupt financial and economic sectors. In fact, he is so confident in cryptocurrency’s staying power that his rhetoric ascended from the analytical to the prophetic:

These currencies are not going away and they will proliferate to every economy and every part of the planet… We are witnessing a technological revolution. Perhaps we are witnessing a modern miracle.

Last week we announced on Twitter that we have reached and exceeded our goal of raising funds to match a generous $1 matching offer from cryptocurrency exchange Kraken (in addition to their already unprecedented $1 million donation), bringing our total fundraise in May to over $3 million.

This enormous outpouring of support from the cryptocurrency community is three times Coin Center’s annual budget, which will help us step up our education and advocacy work at a time when government interest in these technologies is the highest it’s ever been.

The Zcash network supports two kinds of transactions, transparent and shielded. Transparent transactions operate similarly to Bitcoin in that the balance and the amounts of the transaction are publicly visible on the blockchain. Shielded transactions utilize z-addresses and are entirely private. Transactions associated with z-addresses do not appear on the public blockchain. Zcash is the digital cryptography-based asset of the Zcash network, similar to how bitcoin is the digital cryptography-based asset of the Bitcoin network.

Earlier this year, the Japanese Financial Services Agency (FSA) strongly encouraged the Japanese cryptocurrency exchange, Coincheck, to ban trading on privacy protecting coins. They claim that privacy protecting coins such as Zcash and Monero are more likely to be employed in transactions for illicit purposes.

We’ve previously explained why there’s no reason an exchange wouldn’t be able to compliantly deal in privacy protecting cryptocurrencies.

Financial institutions are legally required to comply with anti-money laundering and anti-terrorist financing laws and regulations. Can these institutions use a payment system and currency that leaves no record of individual transactions? Absolutely! That system is called cash and just about every financial institution in the world uses it. Cash transactions are still much more opaque than any cryptocurrency transaction, even a Zcash transaction from a shielded address.

And it is encouraging to see New York’s DFS resist much of the panic around privacy-protecting coins, and recognize the potential value they may bring to users. The forward thinking spirit of the decision is capsulated best by this statement by DFS Superintendent Maria T. Vullo:

"This action continues New York’s longstanding commitment to innovation and leadership in the global marketplace. With smart and thorough regulatory oversight, the development and long-term growth of the industry will remain thriving.”